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STATE OF LOUISIANA VERSUS ROLAND BRIGHT

NO. 03-KA-489 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 00-1002, DIVISION "A" HONORABLE JOAN S. BENGE, JUDGE PRESIDING

OCTOBER 28, 2003

EDWARD A. DUFRESNE, JR. CHIEF JUDGE
Panel composed of Judges Edward A. Dufresne, Jr., Marion F. Edwards and Susan M. Chehardy

PAUL D. CONNICK, JR., DISTRICT ATTORNEY TERRY M. BOUDREAUX ANDREA F. LONG GREGORY M. KENNEDY THOMAS BLOCK ASSISTANT DISTRICT ATTORNEYS 100 DERBIGNY STREET GRETNA, LOUISIANA 70053 COUNSEL FOR PLAINTIFF-APPELLEE MARGARET S. SOLLARS LOUISIANA APPELLATE PROJECT 513 COUNTRY CLUB BOULEVARD THIBODAUX, LOUISIANA 70301 COUNSEL FOR DEFENDANT-APPELLANT ROLAND BRIGHT, IN PROPER PERSON, FOR DEFENDANT-APPELLANT CONCORDIA PARISH CORRECTIONAL FACILITY #ll 26362 HIGHWAY 15 FERRIDAY, LA 71334-5200 AFFIRMED

By this appeal, defendant, Roland Bright, challenges his conviction of
possession of cocaine as well as his adjudication and sentence as a second

felony offender. For the reasons set forth herein, we affirm defendant's
conviction and sentence. This case arises from an incident that occurred on January 4, 2000, in

Jefferson Parish. On that evening, Sergeant Freddie Yorsch of the Jefferson Parish Sheriff's Office Street Crimes Unit conducted a traffic stop of a vehicle in which defendant was a passenger. Specifically, from his position at the foot of the Huey Long Bridge, he observed a blue Jeep Cherokee that did not have a brake tag. In addition, he noticed that the driver of the vehicle was not wearing a seat belt. As Sergeant Yorsch pulled the vehicle over, Sergeant Ed Manix of the Jefferson Parish Sheriff's Office, arrived to render assistance.
During the course of the stop, the officers asked the three occupants of the vehicle to exit. After defendant got out of the rear seat of the jeep, he fled.

Sergeant Manix pursued the defendant on foot and grabbed him by his leather jacket. As defendant fled, he reached into his jacket, pulled out an amber prescription bottle, and threw it to the ground. At this point, Sergeant Manix was able to subdue and handcuff defendant. The prescription bottle -2-

was then retrieved and found to contain seventy off white colored rocks,
which tested positive for cocaine. A pat-down search, conducted pursuant to defendant's arrest, revealed that defendant was also in possession of $433 in cash.

As a result of this incident, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession with intent to distribute cocaine, LSA-R.S. 40:967(A). The matter proceeded to trial before a twelve person jury which found defendant guilty of the responsive verdict of
possession of cocaine, LSA-R.S. 40:967(C). The trial judge sentenced

defendant to imprisonment at hard labor for five years with credit for time served. The state thereafter filed a habitual offender bill, alleging that defendant was a second felony offender, LSA-R.S. 15:529.1. Following the denial of his motion to quash the multiple offender bill, defendant admitted to being a second felony offender. The trial judge accepted defendant's
admission, and then sentenced him to agreed upon sentence of seven and one-

half years of imprisonment at hard labor without benefit of probation or
suspension of sentence. Defendant now appeals. We will first address the issues raised in appellate counsel's brief, and then the additional issues which

were raised by defendant in his pro se brief.

DENIAL OF MOTION TO SUPPRESS
In his first assigned error, defendant challenges the trial court's denial
of his motion to suppress evidence. Defendant contends that the seizure of

evidence arose from an illegal stop and unlawful arrest, and therefore, the evidence should have been suppressed.
At the May 2, 2001 hearing on the motion to suppress, Sergeant Yorsch testified that he made a traffic stop of a blue Jeep Cherokee near the Huey P.

Long Bridge on January 4, 2000. According to Officer Yorsch, he observed -3-

that the vehicle did not have a brake tag, and that the driver was not wearing
a seat belt. As a result, the officer activated his lights and sirens, and stopped

the car which contained three individuals. Sergeant Yorsch approached the driver side of the vehicle while Sergeant Manix, who had come to his
assistance, approached the passenger side. Sergeant Yorsch asked the driver of the vehicle, Michael Morganstern, for his license, registration and insurance. He also asked the driver to exit the vehicle. As he did so, both

officers observed that the vehicle had a broken steering column which suggested to them that the vehicle might be stolen.
Sergeant Manix asked the front seat passenger, Brad Mabile, to exit the

vehicle and step towards the rear, which he did. The officer then turned his attention to defendant, the rear seat passenger, who was fidgeting and acting nervously. Before Sergeant Manix could properly position himself for defendant's exit from the vehicle, defendant swiftly pushed open the door, bumping Sergeant Manix in the process. After defendant exited, he was
ordered to place his hands on the vehicle, so a pat down search for weapons

could be conducted. Defendant started to raise his hands, but then pushed off of the vehicle and ran away. Sergeant Manix gave chase and grabbed defendant by his jacket. As defendant fled, he reached into his jacket, pulled out an amber prescription bottle, and discarded it. At this point, the officer was able to subdue and handcuff defendant. The bottled was then retrieved
and found to contain seventy rocks of crack cocaine. Currency in the amount

of $433 was recovered from defendant's front pants pocket in a search of the defendant after his arrest. Following the hearing on the motion to suppress the evidence, the trial judge denied the motion, finding the search was not unreasonable. Defendant now challenges the denial of this motion.

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The Fourth Amendment of the United States Constitution and Article I,
Section 5 of the Louisiana Constitution prohibit unreasonable searches and

seizures. However, the right of law enforcement officers to stop and
interrogate one reasonably suspected of criminal conduct is recognized by

LSA-C.Cr.P. art. 215.1, as well as by both the federal and state jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v.

Belton, 441 So.2d 1195 (La. 1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Manson, 01-159 (La. App. 5 Cir. 6/27/01), 791
So.2d 749, 755. Reasonable suspicion for an investigatory stop is something less than probable cause and must be determined under the facts of each case

by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable suspicion to
believe that he has been, is, or is about to be engaged in criminal conduct.

State v. Hicks, 98-1231 (La. App. 5 Cir. 3/30/99), 733 So.2d 652.
In the present case, defendant asserts that the officer's actions, in

removing him from the vehicle following the traffic stop, were unreasonable.
Defendant basically challenges the credibility of the police officer's testimony

relating to the brake tag violation. He alleges that Officer Yorsch could not
see the absence of an inspection sticker from where he was located and further his testimony on this subject is inconsistent. Additionally, defendant alleges that at the time of this incident, a seat belt infraction was a secondary

infraction which could not support the legality of the stop. We find no merit
to these arguments.

The evidence at both the suppression hearing and at trial revealed that
Officer Yorsch stopped the vehicle because of brake tag and seat belt

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violations. It has been held that traffic violations constitute reasonable cause

for a stop. State v. Curtis, 98-1283 (La. App. 5 Cir. 6/1/99), 738 So.2d 657.
Thus, Officer Yorsch clearly had reasonable cause to stop the vehicle. Regarding the officer's inconsistent testimony, the record indicates that

at defendant's first trial, which ended in a mistrial, Officer Yorsch testified
that he stopped the subject vehicle because of an expired brake tag. Thereafter, at the motion to suppress hearing and the defendant's second trial, Officer Yorsch testified that he stopped the vehicle because it did not have a brake tag. He was questioned about the discrepancy during his cross-

examination at defendant's second trial, and he explained that he was mistaken when he said the stop was for an expired brake tag. At the hearing on the motion to suppress, the trial judge heard the officer's testimony and apparently found it to be credible. The trial judge also heard the testimony from the officer that he saw the missing brake tag, which prompted the traffic stop, and apparently believed what he said in this regard. These are credibility determinations which will not be reweighed on appeal.

State v. Calvert, 01-826, p. 7 (La. App. 5 Cir. 2/26/02), 811 So.2d 1081, 1084.
Defendant also argues that, at the time of this traffic stop, failure to wear a seat belt was a secondary violation for which the officer would not

have been justified in stopping the vehicle. Even assuming that defendant is
correct in his supposition that the violation was secondary, that fact is of no consequence, since the absence of the inspection sticker alone would have provided reasonable cause for the traffic stop. After the officers effected the stop, they were thereafter justified in

ordering the occupants out of the car. Recently, in Knowles v. Iowa, 525 U.S.

113, 117, 119 S.Ct. 484, 488, 142 L.Ed.2d 492 (1998), the United States
Supreme Court reaffirmed its position first espoused in Pennsylvania v. -6-

Mimms, 434 U.S. 106, 110-111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977), that
officer safety concerns during routine traffic stops justify the "minimal" additional intrusion of ordering a driver and passenger out of the vehicle.
The courts of this state have also affirmed this practice in order to protect

both the officer and the vehicle's occupants during a traffic stop. State v.

Benoit, 01-2712 (La. 5/14/02), 817 So.2d 11, 15.
After exiting the vehicle, defendant fled. Before the officer subdued
defendant, he discarded a bottle containing seventy rocks of crack cocaine. If

a citizen abandons or otherwise disposes of property prior to any unlawful intrusion into the citizen's right to be free from governmental interference, then such property may be lawfully seized and used against the citizen in a

resulting prosecution. State v. Butler, 01-0907 (La. App. 5 Cir. 2/13/02), 812 So.2d 120, 127; State v. Snavelv, 99-1223 (La. App. 5 Cir. 4/12/00), 759 So.2d 950, writ denied, 2000-1439 (La. 2/26/01), 785 So.2d 840. Having found no
unlawful intrusion on the part of the police officers prior to the abandonment of the cocaine, we find that the evidence was lawfully seized. Additionally, defendant's arrest justified the search of his person, during which time $433 was recovered from his pants pocket. The seizure of these funds was lawful as a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89

S.Ct. 2034, 23 L.Ed.2d 685 (1969).
Based on the foregoing discussion, we conclude that the trial judge did not err in denying defendant's motion to suppress evidence. This assigned error is without merit.

INCOMPLETE APPELLATE RECORD
On appeal, defendant contends that he should be granted a new trial because a full record is not available for appellate review.

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In Louisiana, a defendant is constitutionally guaranteed the right of judicial review. The Louisiana State Constitution provides that "no person shall be subjected to imprisonment . . . without the right ofjudicial review based upon a complete record of all evidence upon which the judgment is based." La. Const. art. I,

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